Strict new lawyer advertising ethics rules are being proposed in New York, I suppose to improve the image of lawyers in the eyes of the public. The rules will become effective November 1, 2006. Will new lawyer advertising ethics rules have any effect on shaping the look of lawyer advertising or improving the image of lawyers? It depends upon the creativity of the lawyer or the advertising agency.

It’s really not that difficult to convey a thought without stating it. It just needs a little creativity. Consider the Verizon Wireless TV commercial for their new Chocolate cellphone by LG. If you watch TV, you must have seen it. Their TV commercial exudes sex more than any TV commercial I have ever seen, yet they do it all with chocolate and music, without any mention or images of any sex in the commercial.

New lawyer advertising rules may inhibit some advertisers, but others with creativity can always get around it to make any statement they want. What will the proposed rules do to improve the image of lawyers? One lawyer advertising in New York has TV commercials which seem to comply with the proposed rules. The lawyer does the commercial himself, so there is no actor portraying a lawyer; there are no dramatizations; and no testimonials, but the lawyer imitates Jerry Carroll in the famous Crazy Eddie TV commercials which played in New York during the 1970s and 1980s. For those of you who have not seen the Crazy Eddie commercials, Jerry Carroll appeared on TV as, well, Crazy Eddie. He was screaming with a maniacal look in his eyes and his arms flailing about. You can see Crazy Eddie TV commercials at www.crazyeddie.com. I don’t think this commercial is what the Office of Court Administration would like to see.

Should the state even attempt to regulate the image of lawyers? From a business standpoint, I like the proposed rules. My TV commercials do not violate the proposed rules and the proposed rules will make it more difficult for my competition. From a personal standpoint, I believe that states should reduce their rules and enforce them. Many of the current rules should be eliminated and it is very rare that any of them are enforced. I see current TV commercials for lawyers that violate existing FTC regulations. Do we really need more rules?

Many of the proposed rules are vague and I believe may be unconstitutional even if not vague. Ironically, some of the proposed rules will affect corporate law firms when they were probably aimed at personal injury lawyers. For instance, one of the proposed rules prohibits use of testimonials from current clients, but permits testimonials from former clients. It is easy for personal injury lawyer to obtain a testimonial from a former client, but should a corporate law firm representing a large corporate client like Verizon Wireless be placed in a position of asking the client to find a new law firm so that they can obtain a testimonial?

1200.6 (o) (1) (ii) requires that the attorney disciplinary committee be provided a listing of all media outlets in which the advertisement will appear, the frequency of its use, and the time period during which the advertisement will be used. This is trade secret information, which no one will want to divulge and which smart competitors will take advantage of. I can’t think of any reason that the Office of Court Administration needs to know this information. If the advertisement is violating a rule on ABC, it will also violate the same rule on FOX. If the advertisement doesn’t violate any rules when broadcast 3 times per day on FOX, will it violate the rule if it’s broadcast 15 times per day or even 1,000 times per day?

Additionally, 1200.6 (o) (4) provides that the advertisements filed pursuant to the subdivision shall be open to public inspection. It does not state whether media placement and frequency will be made public. Even if it is not, this is very sensitive trade secret information and the state will probably be litigating this one in the US Supreme Court.

The proposed rules in New York require a lengthy disclaimer. Disclaimers are a funny thing. No one reads disclaimers. The longer a disclaimer is, the less significant it becomes and ensures that it will not be read. The answer must be to make it bigger, maybe require that it be in the audio track, and maybe even emphasized at a higher volume level.

The weird part about disclaimers is that they can actually be used as a selling point by emphasizing. Emphasizing a disadvantage gives the illusion that it is a benefit. This is something that is done with many TV commercials and print advertising. For instance a TV commercial for a 911 commemorative coin proudly proclaims that it will NEVER be released as an official coin! Mortgage applicants are commonly charged a $300 bank fee and some mortgage brokers waive the fee. So, how do you charge this fee or even more and turn it into a selling point? One well known mortgage company advertises that it has a $350 flat fee, as if this were a bargain.

Under certain circumstances indicated in proposed rule 1200-6 (e) the following disclaimer must be both spoken and written in TV and radio commercials: “Prior results cannot and do not guarantee or predict a similar outcome with respect to any future matter, including yours, in which a lawyer or law firm may be retained.” Can anyone make this disclaimer longer or more confusing? Does anyone really believe that the public will understand this disclaimer? The reality is that this disclaimer will have the opposite effect of its intention. No one will pay any attention to this disclaimer, no matter how large or how loud it is.

Proposed rule 1200-6 (g) requires that television and radio advertisements shall be preceded or followed by a spoken statement that the advertisement is “an advertisement for legal services”. Just to make sure that nobody misses the announcement it must also appear in writing in TV commercials.

When I produced my TV commercials, I appeared on the commercials because I found that even people who are illiterate can tell the difference between a lawyer and an actor on a TV commercial. I never thought of asking anyone if they ever thought that any lawyer TV commercials were a public service announcement. I wonder, has anyone ever thought a lawyer commercial wasn’t an advertisement? Please send me the name of anyone! Because infomercials are easily and frequently made to look like they are not advertising, I would go along with this disclaimer for infomercials or any advertisement longer than 60 seconds.

Speaking of public service announcements, 1200.6 (a) states “the content of advertising and solicitation shall be predominately informational, and shall be designed to increase public awareness of situations in which the need for legal services might arise and shall be presented in a manner that provides information relevant to the selection of an appropriate lawyer or law firm to provide such services.” This sounds like a public service announcement to me. I wonder why it has to say “advertisement for legal services”. Of course, it doesn’t really matter because people already know it’s an advertisement and the more disclaimers there are, the less effective they become.

Lets look at this another way. The advertising shall be predominately informational; designed to increase public awareness of the need for legal services; and presented in a manner that provides information relevant to the selection of an appropriate lawyer. Sounds like every lawyer advertisement I’ve seen. I know one when I see it!

Strict advertising regulations can end up having an undesired effect. Advertising is like a river, you can’t stop it, but you can divert it. New advertising regulations will not stop advertising, new regulations will only steer it in a new direction. The biggest question for the regulators is in what direction will they steer it? It is impossible for regulators to foresee the direction, because the direction is dictated by the creativity of many advertisers.